Sheriff’s Department Acknowledges Trust Act Violation

Samuel Sixtos-Gomez
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The Orange County Sheriff’s Department has acknowledged it violated California’s newly enacted Trust Act when it turned over to immigration authorities an inmate who did not commit a crime that warranted such an action.

The violation is the first of its kind for the agency and happened because erroneous information filed in Santa Ana resident Samuel Sixtos-Gomez’s criminal record made it seem like he had a serious conviction that met the conditions for detaining individuals who are otherwise eligible to be released from custody under the Trust Act, according to Sheriff’s Department spokesman, Lt. Jeff Hallock.

The act, which went into effect Jan. 1, prohibits local law enforcement agencies from detaining an individual who is otherwise eligible for release from custody on an immigration detainer, except in limited circumstances.

On April 14, Sixtos-Gomez was arrested on an outstanding warrant after two Santa Ana Police Department patrol officers spotted him walking with a documented gang member in an area that’s experienced a recent spike in gang activity, according to the department’s spokesman, Corporal Anthony Bertagna.

Sixtos-Gomez advised the officers he had a warrant for his arrest, which the officers confirmed, said Bertagna. He was subsequently booked into Orange County’s Central Jail, and at that point, Sheriff’s deputies who are authorized by U.S. Immigration Customs and Enforcement (ICE) to screen the immigration status of detainees, placed a detainer on the 25-year-old.

After ICE agents took Sixtos into custody on April 18, he was placed in removal proceedings, according to a coalition of Santa Ana immigrant rights activists who have advocated for his release because he does not have a serious criminal record.

Under the Trust Act, the detainee’s criminal record must include certain specified convictions or charges, for example, a conviction for a serious or violent felony, or a serious or violent felony charge for which a judge has found probable cause; or must meet certain conditions, for example, if the individual is subject to an outstanding federal felony arrest warrant.

“We did release him (to ICE) in violation of the Trust Act, and we made our determination to hold him under the Trust Act based on the local arrest record that provided the screening deputy with inaccurate information,” Hallock said.

“It shed some light on the fact that these local arrest records may not be 100 percent accurate and that we need to follow up and use numerous databases to make sure the information is 100 percent accurate and that this doesn’t happen again.”

Potential Legal Consequences

The case could have potential legal ramifications for the agency as recent claims filed against the Baldwin Park Police Department and the Sacramento Sheriff’s Department have exposed the liabilities facing departments that detain individuals without proper due process or probable cause.

One example is a recent decision by the U.S. District Court of Oregon to award damages to an undocumented immigrant who was held in prolonged detention on an immigration detainer in violation of her Fourth Amendment constitutional right against search and seizure.

Immigration detainers are not warrants or court orders and therefore are not mandatory. They are notices requesting that law enforcement agencies hold a detainee for up to 48 hours past their release date so that ICE agents can take the individual into custody and investigate their immigration status.

The Trust Act strengthened the rights of undocumented immigrants in California by prohibiting law enforcement from responding to ICE detainers unless two conditions are met: The individual’s continued detention must not violate any federal, state, or local law/policy, and his or her criminal record must include the specified charges, convictions or conditions listed in the law.

The state legislature didn’t stipulate the penalties for agencies that violate the Trust Act, leaving potential victims with the choice of filing a lawsuit as the the primary recourse for redress.

The San Francisco-based legal and civil rights organization, Asian Americans Advancing Justice – Asian Law Caucus, and other similar groups have tracked almost two dozen Trust Act violations throughout California so far this year, according to Angela Chan, a senior staff attorney with the caucus’ Criminal Justice Reform Program.

“When [law enforcement agencies] say ‘we’ve make a mistake,’ that’s not a defense that will hold up,” said Chan, noting that last December a coalition of civil rights organizations sent a letter alerting every sheriff’s department and county counsel about the requirement to comply with the Trust Act and offered resources to those agencies to help them comply.

Thomas A. Saenz, president and general counsel for the Mexican American Legal Defense and Educational Fund, a Los Angeles-based civil rights organization, said that making a mistake doesn’t excuse a Trust Act violation.

“They are subject to liability because their obligation is to comply with the Trust Act, period, end of story,” said Saenz. “…We can and do expect law enforcement agencies to comply with the laws put in place and to have the right process to ensure they are complying with the law, particularly when somebody’s liberty is at stake.”

Saenz added that even Trust Act compliance may not be enough to shield law enforcement agencies from liability as seen in April’s ruling by the federal court in Oregon, which found that the Clackamas County Jail imprisoned the plaintiff without probable cause and violated her Fourth Amendment right to be free from unreasonable search and seizure.

Although in this Orange County case, the liability would fall on the Sheriff’s Department for violating the Trust Act, Saenz noted that ICE should not ignore the circumstances that led to Sixtos-Gomez’s transfer of custody to immigration authorities.

“One would hope that our federal government would not want to be complicit with the violation of an individual and…one would hope and expect that ICE would decide in its discretion to review the matter,” said Saenz.

Limited Jurisdiction

ICE spokeswoman Virginia Kice confirmed that Sixtos-Gomez remains in immigration detention. She emphasized that state statutes such as the Trust Act do not apply to federal agencies such as ICE.

“Whether or not an agency did or didn’t comply with the Trust Act, as a federal agency we’re bound to enforce federal law,” said Kice, the agency’s Western Regional Communications Director.

Kice did not specifically say how ICE would respond to a case where a law enforcement agency mistakenly releases an undocumented immigrant to ICE in violation of the Trust Act, but she noted that ICE conducts a thorough review to determine whether a case falls within the agency’s priorities.

In recent years, the Obama Administration has worked to reduce the use of detainers on individuals arrested for minor misdemeanors, such as traffic offenses or petty crimes.

The Department of Homeland Security database indicates that Sixtos-Gomez has been apprehended and deported six times under ICE’s voluntary departure procedures.

According to the Sheriff’s Department, Sixtos-Gomez’s criminal history shows several traffic related charges on his record – two misdemeanors and an infraction, and according to the erroneous record, a conviction for a crime that falls under the conditions in the Trust Act. Hallock did not release the specific conviction because of privacy concerns, and the conviction did not appear in the Orange County Superior Court records in a recent search.

Hallock said it was unclear how the incorrect conviction was entered into the database, but since discovering the discrepancy, the department now cross checks the records with court minutes to confirm whether the individual can be detained for ICE under Trust Act conditions.

Policy Changes

The Orange County Sheriff’s Department made several revisions to its detainer policy last month, and ultimately decided that it will no longer hold any inmate beyond his/her scheduled release date on an ICE detainer, unless the ICE hold is accompanied by a warrant or court order that shows probable cause.

However, a June 12 letter from Sheriff Sandra Hutchens to a regional representative of ICE indicated the department will “make all reasonable efforts to notify ICE when the inmates are scheduled for release or become eligible for release.” ICE agents will still be allowed to take custody of inmates as long as the custody transfer occurs within that release process and doesn’t require additional detention time.

Individuals who are in removal proceedings due to a Violation of the Trust Act have few options when it comes to challenging a deportation, but legal advocates are pursuing what is known as a motion to suppress to halt the deportations, says Grisel Ruiz, an attorney and fellow at the Immigrant Legal Resource Center in San Francisco.

A motion to suppress is typically used in criminal proceedings and is based on the legal argument that when evidence has been illegally obtained, the immigration court should not deport based on that evidence, in this case, by virtue of the Trust Act violation, said Ruiz.

“Otherwise there’s very little to no recourse for someone who’s been referred in violation of the Trust Act, and that’s all the reason why it’s more dangerous,” says Ruiz, noting how immigrants arrested for benign offenses have been turned over to ICE and separated from their families.

So far, 25 of the state’s 58 counties have adopted new policies in light of the Clackamas County decision and decided not to respond to ICE detainer requests, said Chan.

The recent detainer policy revisions across the country will place those counties in a “safer place,” Chan said, because they will avoid making Trust Act determinations that could place them in hot water legally.

Nationally, about 140 counties have decided not to respond to ICE detainers, a trend that Chan said indicates that not just California, but the country is moving toward significantly limiting responses to ICE detainers.

“Part of the reason why is the concern about liability and the concern with these Constitutional Fourth Amendment violations,” said Chan, who last month filed a legal claim threatening a lawsuit against the Sacramento Sheriff’s Department for violating the Trust Act.

“This case in Orange County is a prime example because databases are not perfect. They are filled with errors and certainly somebody should be held in violation of the Trust Act.”

Yvette Cabrera is a long-time Orange County journalist and Voice of OC contributing writer.

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